Citation Nr: 0625647
Decision Date: 08/18/06 Archive Date: 08/24/06
DOCKET NO. 06-20 676 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan
THE ISSUE
Whether there was clear and unmistakable error in an April
1961 rating decision that severed service connection for
asthma.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Christopher Maynard, Counsel
INTRODUCTION
The veteran had active service from June 16, 1943, to
December 11, 1943.
This matter comes before the Board of Veterans Appeals
(Board) on appeal from a January 2006 decision which found
that there was no clear and unmistakable error (CUE) in an
April 1961 rating decision that severed service connection
for asthma.
FINDINGS OF FACT
1. By a letter dated in November 1960, the RO notified the
veteran of a proposal to sever service connection for asthma
based upon clear and unmistakable error (CUE) by the RO in
granting service connection in a March 1946 rating decision.
2. The veteran did not respond to the proposed severance
action finding CUE, and service connection for asthma was
severed by rating decision in April 1961. The veteran was
notified of the action by letter in April 1961, and did not
appeal.
3. The facts as they were known at the time of the RO's
April 1961 rating decision were correct and it has not been
shown otherwise.
4. The statutory and regulatory provisions in effect at the
time of the RO's April 1961 rating decision were correctly
applied and it has not been shown otherwise.
5. There was a tenable basis for the RO's April 1961
decision that the veteran's asthma clearly and unmistakably
pre-existed his military service, and clearly and
unmistakably was not aggravated therein.
CONCLUSION OF LAW
The April 1961 rating decision that severed service
connection for asthma does not contain clear and unmistakable
error. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. §§ 3.104,
3.105 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
It is noted that the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000)
became law in November 2000, long after entry of the decision
in which CUE is alleged to exist. The VCAA significantly
added to the statutory law concerning VA's duties when
processing claims for VA benefits by redefining the
obligations of VA with respect to its duty to assist a
claimant, and including an enhanced duty to notify a claimant
as to the information and evidence necessary to substantiate
a claim for VA benefits.
Given the parameters of the law surrounding CUE claims,
however, the duties to notify and assist imposed by the VCAA
are not applicable where CUE is claimed in prior RO
decisions. Livesay v. Principi, 15 Vet. App. 165 (2001). As
noted in Livesay, CUE claims are not conventional appeals,
but rather are requests for revision of previous decisions.
A claim based on CUE is fundamentally different from any
other kind of action in the VA adjudicative process. A
litigant alleging CUE is not pursuing a claim for benefits,
but rather is collaterally attacking a final decision.
Livesay v. Principi, at 178-9. Moreover, that litigant has
the burden of establishing such error on the basis of the
evidence then of record. Id.
Factual Background
The veteran served on active duty from June 16, 1943, to
December 11, 1943. His entrance examination showed no
history, abnormalities, or diagnosis referable to any
respiratory problems, including asthma. On examination, his
lungs were normal and a chest x-ray study was negative.
The service medical records showed that the veteran was seen
for a chest cold on August 16, 1943 and again on several
occasions beginning on September 6, 1943. His symptoms
included wheezing and inconsistent rales in his chest.
Hospital records showed that he was admitted on September 24,
1943, for observation to determine if he had asthma. On
admission, the veteran reported a history of asthma all his
life and said that his father and one brother were asthmatic
and that there was a long history of allergies on his
father's side. He reported wheezing nearly all his life with
severe attacks occurring during the goldenrod season and when
the dust was heavy. He denied any specific treatment or skin
test for allergies, but said that he got an occasional shot
during periods of mild distress from a private physician. He
said that his asthma had never been severe enough to seek
emergency medical care.
Examination of the lungs and thorax was essentially normal
and there was no evidence of any respiratory abnormalities.
A chest x-ray study was clear. The final summary indicated
that there was no evidence of asthmatic rales or any other
symptoms of asthma, and that all clinical and diagnostic
studies were negative during his hospital stay.
The veteran was readmitted in November 1943 after a mild
asthmatic attack. He had numerous asthmatic rales in the
left anterior and posterior chest for several days with
minimal discomfort but no true respiratory distress. Chest
x-rays studies on admission and discharge were negative. His
symptoms were clear by the 10th day. A Medical Evaluation
Board (MEB) determined that the veteran's asthma pre-existed
his induction into service and was not aggravated by service,
and that he was unfit for further military service due to
bronchial asthma. In December 1943, the MEB concluded that
the veteran had reached maximum improvement and recommended
that he be medically discharged from service.
In January 1946, the veteran sought service connection for
asthma. By rating action in March 1946, the RO granted
service connection for asthma on the basis that it was
"incurred" in service and assigned a 10 percent evaluation.
The rating sheet indicated that the award was based on
incomplete records.
A private examination report from Michigan Medical Services
(apparently in lieu of a VA examination) in April 1946,
showed a self-described history of asthma since childhood
which the veteran reported had worsened since service. He
complained of shortness of breath at night or on exertion,
and a cough with moderate expectorant. The veteran reported
asthmatic attacks about once a month lasting about a week.
An examination revealed normal chest and respiratory movement
with scattered rales. No diagnostic tests were accomplished
and no other clinical findings were reported. The diagnosis
was bronchial asthma.
By rating action in May 1946, the RO assigned an increased
rating to 30 percent, based on the private medical report.
A medical report from Michigan Medical Services in April
1947, noted the same self-described history of respiratory
distress as on the earlier report. On examination, his lungs
were negative and there were no rales, dullness, or bronchial
breathing. The examiner indicated that there was no evidence
of asthma on examination and that the veteran's general
health appeared good. A chest x-ray study was negative.
By rating action in May 1947, the RO confirmed and continued
the 30 percent evaluation assigned for the veteran's asthma.
The veteran was notified of this decision and did not appeal.
When examined by VA in December 1959, the veteran reported
that he had asthma attacks about once every two to three
weeks, lasting one to three days and relieved with
"Asthmadoz." He said that he had not seen a doctor for his
asthma in many years. On examination, chest expansion was
equal and there was no evidence of wheezing. A chest x-ray
study showed normal lung fields. The diagnoses included
chronic bronchial asthma, by history.
An April 1960 rating decision proposed severing service
connection for the veteran's bronchial asthma. The decision
noted that the initial March 1946 rating decision that
granted service connection for asthma constituted clear and
unmistakable error on the basis that the veteran's history
and findings in service showed a chronic asthmatic condition
that existed prior to service and that there was no permanent
increase in the disability during service. The case was also
referred to VA's Director of Compensation and Pension Service
in July 1960 for administrative review, and it concurred in
the severance proposal. The veteran and his representative
were notified of the rating decision and the proposed action
in November 1960, and informed of his right to contest the
proposed action. The veteran did not reply or submit any
additional evidence.
The proposed severance was effectuated in an April 1961
rating decision. The veteran and his representative were
notified of this decision the same month and did not appeal.
A claim of CUE in the April 1961 rating that severed service
connection for asthma was received in October 2002. By
rating action in January 2006, the RO found that the 1961
rating decision to sever service connection was proper and
did not involve CUE. The veteran disagreed with this
decision giving rise to this appeal.
Analysis
The representative asserts, in essence, that the severance of
service connection for asthma in 1961 was improper because:
the original grant of service connection was a matter of
rating board judgment; the original grant was supported by
regulatory authority as the presumption of soundness applied
and was not rebutted by clear and unmistakable evidence at
the time; that assuming that the veteran's asthma did
preexist service, it underwent an increase in service and the
presumption of aggravation was not rebutted; and that the
April 1961 severance was not in accordance with governing
legal criteria in that the severance was nothing more than a
disagreement over how the facts were weighed and evaluated in
the original grant of service connection in 1946 which by
definition does not rise to the level of CUE necessary for a
proper severance action.
Initially, it should be noted that there has been no material
or substantive change in VA regulations pertaining to the
presumption of soundness or to severance of a service-
connected disability since 1946. Service connection will be
severed only where evidence establishes that the grant was
clearly and unmistakably erroneous (the burden of proof being
upon the Government). A change in diagnosis may be accepted
as a basis for severance action if the examining physician or
physicians or other proper medical authority certifies that,
in the light of all accumulated evidence, the diagnosis on
which service connection was predicated is clearly erroneous.
This certification must be accompanied by a summary of the
facts, findings, and reasons supporting the conclusion. When
severance of service connection is considered warranted, a
rating proposing severance will be prepared setting forth all
material facts and reasons. The claimant will be notified at
his or her latest address of record of the contemplated
action and furnished detailed reasons therefore and will be
given 60 days for the presentation of additional evidence to
show that service connection should be maintained. If
additional evidence is not received within that period, final
rating action will be taken and the award will be reduced or
discontinued, if in order, effective the last day of the
month in which a 60-day period from the date of notice to the
beneficiary of the final rating action expires. 38 C.F.R.
38 C.F.R. § 3.105(d) (previously 38 C.F.R. § 2.1009(d)
(1945); see also VAR 1009(A), (D).
In a case involving CUE, in order to sever service
connection, the VA must comply with specific procedures and
meet its high burden of proof. See Baughman v. Derwinski, 1
Vet. App. 563, 566 (1991). In Damrel v. Brown, 6 Vet. App.
242 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-
4 (1992)), the Court established a three-prong test to
establish a claim of clear and unmistakable error:
(1) '[E]ither the correct facts, as they
were known at that time, were not before
the adjudicator (i.e., more than a simple
disagreement as to how the facts were
weighed or evaluated) or the statutory or
regulatory provisions extant at the time
were incorrectly applied,' (2) the error
must be 'undebatable' and the sort
'which, had it not been made, would have
manifestly changed the outcome at the
time it was made,' and, (3) a
determination that there was [clear and
unmistakable error] must be based on the
record and law that existed at the time
of the prior adjudication in question.
Damrel, 6 Vet. App at 245.
The present case, however, is not a review of a timely
appealed severance of service connection. The severance
action now being contested by the appellant took place in
1961, and was not appealed at that time. Since the RO's 1961
decision is final, in order to prevail in this case, the
veteran must show that the 1961 determination of CUE in the
1946 rating decision was, itself, the product of CUE.
Although VA obviously had a very high burden to meet in its
1961 rating decision, the veteran now bears the same high
burden of establishing CUE in that RO decision. See Daniels
v. Gober, 10 Vet. App. 474, 479 (1997).
Here, the veteran has not made any contention that the RO
failed to satisfy the procedural safeguards which were in
place in 1961, when service connection for asthma was
severed. The Board has, nevertheless, carefully reviewed the
procedures followed by the RO, and notes the April 1961
rating action at issue reflects that all the evidence of
record was considered at that time. Similarly, the evidence
shows that the veteran was notified of the proposed action in
writing, and final action was not taken until 60 days after
he was so notified. Thus, VA complied with the procedural
safeguards set out in VAR 1009(D), as in effect in 1961.
As to the veteran's challenge of the RO's severance of the
March 1946 grant of service connection, the Board recognizes
that the regulatory provisions extant at the time with regard
to the establishment of service connection for a particular
disorder were essentially the same as they are today. See
generally Pub. Law No. 77-361 (effective December 20, 1941);
VA Inst. 1 to Sec. 9(a) and (b) of Pub. Law. No. 78-144
(effective July 13, 1943); Regulations and Procedure -
Regulations (R&PR) 1077(B) (effective December 20, 1941).
Essentially, in order to establish service connection,
applicable law has generally always required that there must
be evidence that establishes that a claimed disorder either
began in or was aggravated by active service. Moreover,
claimants are presumed to have been in sound condition when
examined, accepted, and enrolled for service, except as to
disorders noted at entrance into service, unless clear and
unmistakable evidence demonstrates that the injury or disease
in question existed before service and was not aggravated in
service. See also 38 U.S.C.A. §§ 1110, 1111 (West 2002); 38
C.F.R. §§ 3.303(a), (c), 3.304(b) (2005).
It has also long been acknowledged in VA service connection
regulations that there are medical principles so universally
recognized as to constitute fact and, when in accordance with
these principles the existence of a disability prior to
service is established, no additional or confirmatory
evidence is necessary. Consequently, with notation or
discovery during service of such residual conditions with no
evidence of the pertinent antecedent active disease or injury
during service, the conclusion must be that they pre-existed
service. Nevertheless, if evidence is submitted that is
sufficient to demonstrate that a claimant's disorder
preexisted service and then underwent an increase in severity
during service, it is presumed that the disorder was
aggravated by service, unless clear and unmistakable evidence
is presented that rebuts the presumption. See VA Inst. No. 1
to Sec. 9 (a) and (b) of Pub. Law No. 78-144, Par. 2(d)
(effective July 13, 1943); see also 38 U.S.C.A. § 1153 (West
2002); 38 C.F.R. §§ 3.303(c), 3.306 (a), (b) (2005).
The veteran's entrance examination did not show any
respiratory abnormalities or asthma at the time he was
accepted in to military service. Therefore, he is presumed
to have been in sound condition at the time of entrance,
unless the evidence clearly and unmistakably disclosed that
his asthma had its inception prior to service. 38 C.F.R.
§ 3.304(b) (formerly 38 C.F.R. § 2.1063 (1946). In
determining whether a disorder existed prior to entry into
service, it is important to look at accepted medical
principles including clinical factors pertinent to the
history, manifestations, clinical course, and character of
the disorder. 38 C.F.R. § 3.304(b)(1).
In this case, although his enlistment examination in June
1943 did not show any evidence of a respiratory disorder or
asthma, the veteran reported that he had asthma since he was
a child when hospitalized for respiratory problems in
service. The veteran didn't just mention a history of vague
respiratory problems, but clearly articulated his symptoms,
familial history, and the course of treatment by a private
physician prior to entering service. While the
representative is correct in asserting that the veteran is
not competent to offer a medical diagnosis, he is competent
to provide information as to his symptoms and treatment for
his respiratory problems, and to relate what healthcare
providers may have told him about his symptoms.
Moreover, the veteran underwent extensive observation and
examination in service for the specific purpose of
determining if he had asthma. Based on the veteran's
description of his symptoms and treatment prior to service
and the clinical findings on examination, a Medical
Evaluation Board (MEB) concluded, in essence, that his asthma
clearly and unmistakably existed prior to enlistment.
Contrary to the representative's assertions, the MEB
determination was based on a longitudinal review of all
relevant evidence, including the veteran's medical history,
observed clinical factors, and a thorough analysis of all
relevant facts and medical principals. In fact, there was no
competent evidence or even any subjective evidence that the
veteran's asthma did not exist prior to service. The Board
finds that the RO's April 1961 conclusion, that the notations
of the veteran's history of preexisting respiratory problems
as well as the objective evidence of record was clear and
unmistakable evidence sufficient to rebut the presumption of
soundness at entry, was not itself clear and unmistakable
error and was not based on incorrect facts or a
misapplication of the law in effect in 1961. In other words,
the notations in the service medical records which place the
date of onset of the veteran's asthma prior to service
coupled with the findings of the MEB at separation that
asthma preexisted service, effectively rebuts the presumption
of soundness at induction as promulgated in amendment by
Public Law No. 144, 78th Congress, (September 4, 1943).
Additionally, the statements of the veteran in service formed
a factual predicate for the findings of the MEB at
separation. Although the Court's jurisprudence regarding the
presumption of soundness did not exist in 1946 or 1961, the
Court would later find that the unanimous findings of an
inservice Board of Medical survey, based upon a veteran's own
history filtered through its medical expertise, provided the
required factual predicate necessary to clearly and
unmistakably rebut the presumption of soundness. See Gahman
v. West, 12 Vet. App. 406, 411 (1999). Therefore, the RO's
April 1961 determination that the March 1946 grant of service
connection for asthma was erroneous because the presumption
of soundness had been rebutted and the veteran's asthma had
thus pre-existed service was not a matter of judgment or
weighing the evidence, but based on the correct facts, and
applicable laws and regulations extant at the time.
As for the assertion that the April 1961 decision was
erroneous because the presumption of aggravation had not been
rebutted by clear and unmistakable evidence, the Board notes
that a pre-existing injury or disease will be considered to
have been aggravated by active service where there is an
increase in disability during service. Where the evidence
shows that there was an increase in disability during
service, there is a presumption that the disability was
aggravated by service. There is no aggravation of a
preexisting disease or injury if the condition underwent no
increase in severity during service on the basis of all of
the evidence of record pertinent to the manifestations of the
disability prior to, during, and subsequent to service. 38
C.F.R. § 3.306(b). Intermittent or temporary flare-ups
during service of a preexisting injury or disease do not
constitute aggravation; rather, the underlying condition must
have worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297
(1991).
In this regard, the MEB determined that the veteran's asthma
did not undergo an increase in severity beyond the natural
progress during service. The evidence showed that the
veteran had only one mild asthmatic attack during service
manifested by rales and minimal discomfort. The veteran was
never in respiratory distress, and did not manifest more than
mild symptoms which cleared within days. In fact, all
diagnostic studies, including chest x-ray studies in service
were negative. The objective symptoms for the veteran's only
asthmatic attack in service were described as mild, which was
consistent with his self-described history of symptoms prior
to service.
Although the veteran asserted that his symptoms had worsened
since service when examined by a private healthcare provider
in 1946 and 1947, and by VA in 1959, there were no objective
clinical or diagnostic findings on any of the three
examinations, other than a few scattered rales on examination
in 1946. The fact that the veteran stated in 1959 that he
had not seen a doctor for his asthma in many years, and the
absence of evidence of medical treatment other than the three
examinations discussed above prior to 1961, would seem to
contradict the veteran's assertions regarding the extent and
severity of his asthma.
Clearly, there was a basis for the April 1961 RO decision
that the laws and regulations were incorrectly applied in
March 1946 in granting service connection as there was no
competent evidence to support the conclusion that the
veteran's asthma was "incurred" in service, other than the
absence of findings on his entrance examination. The RO's
April 1961 rating decision which essentially found that the
overwhelming evidence of record at the time of the March 1946
rating decision clearly and unmistakably showed that the
veteran's asthma pre-existed service and was not aggravated
by service has a plausible basis in the record, and thus, the
claim of error in the April 1961 rating decision is not an
undebatable one in regard to whether service connection
should have been severed.
The veteran asserts that the April 1961 rating decision
simply reweighed the facts and impermissibly came to a
conclusion different from the RO in the March 1946 decision.
He asserts that the facts documented by his service medical
records and post-service records are persuasive enough to
convince any adjudicator that service connection was
warranted for asthma. In the Board's view, however, these
contentions do not provide a valid basis for a CUE claim,
since they do not allege that the correct facts, as they were
known at the time, were not before the adjudicator, and it is
not demonstrated that the statutory or regulatory provisions
extant at the time were incorrectly applied. Rather, the
veteran's argument would require the Board to reevaluate the
evidence considered in 1961, and to decide whether it
provided a basis for the decision rendered at that time. As
the Court has held, however, "simply to claim CUE on the
basis that previous adjudications had improperly weighed and
evaluated the evidence can never rise to the stringent
definition of CUE." Fugo, 6 Vet. App. at 44. The Board also
notes the Court's holding in Daniels, supra, wherein the
veteran had argued that a 1957 decision to sever service
connection, which had been established in 1943, was erroneous
because there was no substantial basis for the finding, in
1957, that the veteran's psychosis had existed prior to
service and was not aggravated by service. The Court held
that such an argument would require the Court to reevaluate
the evidence considered in 1957, to decide if it provided a
"substantial basis" for the decision, and that this did not
meet the standard of a CUE claim. In light of the above, the
Board finds that there was no clear and unmistakable error in
the April 1961 rating decision that severed service
connection for asthma. See generally Wilson v. West, 11 Vet.
App. 383, 385-87 (1998).
ORDER
The claim that an April 1961 rating decision that severed
service connection for asthma contained clear and
unmistakable error is denied.
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs